STATE OF M.P. Vs SURESH NARAYAN VIJAYVARGIYA & ORS.
Bench: B.S. CHAUHAN,K.S. RADHAKRISHNAN,S.A. BOBDE
Case number: CONMT.PET.(C) No.-000390-000390 / 2011
Diary number: 26423 / 2011
Advocates: B. S. BANTHIA Vs
SUSHIL KUMAR JAIN
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REPORTABLE
IN THE SUPREME COURT OF INDIA
ORIGINAL CONTEMPT JURISDICTION
CONTEMPT PETITION (CIVIL) NO.390 OF 2011
IN
CIVIL APPEAL NO.4060 OF 2009
State of M.P. & Anr. … Petitioners
Versus
Suresh Narayan Vijayvargiya & Ors. … Respondents
J U D G M E N T
K.S. Radhakrishnan
1. We are, in this contempt petition, concerned with the
question whether the contemnors have violated the
interim orders passed by this Court on 27.5.2009 and
27.1.2011 in Civil Appeal No. 4060 of 2009 in the matter
of sharing of MBBS seats between the respondent private
medical college and the State Government.
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2. Civil Appeal No. 4060 of 2009 was preferred by the
respondents/contemnors herein, challenging the judgment
of the High Court of Madhya Pradesh dated 15.5.2009,
which upheld the validity of the Madhya Pradesh
(Admission and Fee Regulatory Committee) Act, 2007 (for
short “AFRC Act”), empowering the State Government to
fill all the seats (including the NRI seats) in all the
education institutions in the State of Madhya Pradesh,
including private medical and dental collages. Since
serious disputes were raised with regard to seat sharing
and fixation of quota of seats for MBBS/BDS, this Court felt
that some interim arrangement should be made taking
note of the interest of both the parties and also that of the
students. This Court, therefore, as an interim measure,
passed an order on 27.5.2009 in C.A. No.4060 of 2009 and
the connected appeals, which reads as follows:
“We, therefore, direct that the admissions in the private unaided medical/dental colleges in the State of Madhya Pradesh will be done by first excluding 15% NRI seats (which can be filled up by the private institutions as per para 131 of Inamdar case), and allotting half of the
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85% seats for admission to the undergraduate and post-graduate courses to be filled in by an open competitive examination by the State Government, and the remaining half by the Association of the Private Medical and Dental Colleges. Both the State Government as well as the Association of Private Medical and Dental Colleges will hold their own separate entrance examination for this purpose. As regards “the NRI seats”, they will be filled as provided under the Act and the Rules, in the manner they were done earlier.
We make it clear that the aforesaid directions will for the time being only be applicable for this Academic Year i.e. 2009- 2010. We also make it clear that if there are an odd number of seats then it will be rounded off in favour of the private institutions. For example, if there are 25 seats, 12 will be filled up by the State Government and 13 will be filled up by the Association of Private Medical/Dental Colleges. In specialities in PG courses also half the seats will be filled in by the State Government and half by the Association of Private Medical/Dental Colleges and any fraction will be rounded off in favour of the Association. In other words if in any discipline there are, say, 9 seats, then 5 will be filled in by the Association and the remaining 4 will by the State Government. Capitation fee is prohibited, both to the State Government as well as the private institutions, vide para 140 of Inamdar case. Both the State Government and the Association of Private Medical/Dental Colleges will separately hold single window examinations for the whole State (vide para 136 of Inamdar case).
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We make it clear that the solution we have arrived at may not be perfect, but we have tried to do our best to find out the best via media. Although this order is only for Academic Year 2009-2010, we recommend that it may also be considered for future sessions.
Six weeks’ time is allowed for filing counter-affidavit and four weeks thereafter for filing rejoinder.
List these appeals for final hearing in September 2009. In the meantime, pleadings may be completed by the parties.”
3. The interim arrangement made continued in the
subsequent years as well and in the year 2011-2012, this
Court vide its order dated 27.1.2011 in I.A. No. 50 of 2011
passed the following order:
“The order dated 27th May, 2009 made in Civil Appeal No. 4060 of 2009 etc. shall be applicable for the academic year 2011-2012.
There shall be an order accordingly.”
4. This contempt petition has been preferred by the
State Government and the Director of Medical Education
Department alleging that the contemnors have filled up
the entire 150 seats available for the year 2011-2012,
without sharing it with the State Government, violating
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the orders of this Court dated 27.5.2009 and 27.1.2011.
Petitioners pointed out that the contemnors had sent a
letter dated 23.5.2011 stating that they would fill up the
entire seats during the academic year 2011-2012 since
their colleges would be functioning under the Madhya
Pradesh Niji Vishwavidyalaya (Sthapana Avam Sanchalan)
Adhiniyam, 2007 [for short “Adhiniyam 2007”],
consequent to the establishment of the Peoples’
University under M.P. Act No.18 of 2011 and the
admission process of those constituent institutions would
be governed by the statutes and ordinances framed under
the above-mentioned Act. The State Government
noticing the stand taken by the contemnors, wrote a letter
dated 14.7.2011 to the Managing Director of the Medical
College stating that the admissions have to be made only
following the arrangement made by this Court vide order
dated 27.1.2011 and, if any change has to be made, the
same could be done only with the permission of this
Court.
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5. The Directorate of Medical Education of the State
Government also wrote a letter dated 14.7.2011 to the
Medical Council of India, informing the Council of the
defiant attitude taken by the contemnors by not giving
admission to any of the students included in the State
quota for the academic year 2010-11.
6. The Directorate of Medical Education then wrote a
detailed letter dated 8.8.2011 to the Secretary,
Association of Private Dental & Medical Colleges, in the
State, specifically referring to the interim order passed by
this Court on 27.1.2011 reminding them of the necessity
of the compliance of the Court’s directions in the matter of
seat sharing. The contemnors, ignoring those letters,
published an advertisement in a local newspaper “People
Samachar” on 9.8.2011 informing the public that 150
seats would be available with them for admission to MBBS
course under the management quota for the year 2011-
12.
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7. The Directorate of Medical Education, in the
meanwhile, sent a list of 66 students under the State
quota to the Medical College for admission to MBBS
course. The contemnors refused to admit those students
under the State quota and the State Government received
several complaints from the students who were included
in the State quota, but not admitted by the contemnors.
The State Government then sent a notice dated
17.8.2011, to the Dean of the Medical College to show
cause why the following action be not initiated against the
college:-
(a) withdraw the Desirability and Feasibility Certificates issued in favour of the college;
(b) report the matter to the Medical Council of India to take suitable action against the college.
(c) report the matter to the concerned authorities for action against Madhya Pradesh Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007.
8. The contemnors, in total defiance of the Court’s
order as well as the various directions issued by the
Directorate of Medical Education, filled up the entire 150
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seats in the management quota for the academic year
2011-12.
9. The students, who figured in the State quota, then
approached the High Court of Madhya Pradesh. The High
Court directed the contemnors to admit students who
were included in the State quota. Consequently, they
admitted those students and the number of students
admitted in the College went up to 245 as against the
sanctioned strength of 150 seats. The Medical College
does not have the infrastructural facilities to admit 245
students, which has adversely affected the academic
standards of the students admitted. The State
Government, as also the Directorate of Medical Education,
in the above-mentioned circumstances, approached this
Court and filed the present Contempt Petition for taking
appropriate action against the contemnors for violating
the orders passed by this Court on 27.5.2009 and
27.1.2011 and also by not complying with the various
directions issued by the State Government as well as the
Directorate of Medical Education.
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10. When the matter came up for hearing, this Court
issued notice to the contemnors. Learned senior counsel
appearing for the contemnors, submitted before this Court
on 3.2.2014 that they would be tendering their
unconditional and unqualified apology for their actions
and made a proposal to set right the illegalities
committed, which reads as under :-
(a) None of the 245 students admitted in the Institution – Peoples College of Medical Sciences (PCMS) during the academic year 2011-12 shall be disturbed and they all will continue to pursue their course without any interruption. This would include the students allotted by the State who had been given provisional admissions pursuant to the orders of the Hon’ble High Court.
(b) In the academic session 2011-12 on the basis of the 50-50 admissions between the College and State after 15% NRI quota is deducted as per the orders of this Hon’ble Court, the State entitlement filled in by the institution was 63 seats. The institution shall accordingly surrender 21 seats in each of the following three academic years i.e. 2014-15, 2015-16 and 2016-17 to the State government to be filled in through the procedure laid down in the order dated 27.5.2009.
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11. The contemnors on 13.2.2014, filed a written note
wherein, after reiterating the proposals submitted on
3.2.2014, they stated as follows :
“13. Though admissions have already been made by the State against the said 63 seats for the year 2011-12 in the said year itself still in deference to the orders of this Hon’ble Court the Respondent is willing to give up the said 63 seats. It is however requested that if these 63 seats are adjusted only in one year, the college would suffer adversely. Therefore, the Respondent again humbly submits that it be permitted to surrender 21 seats in each of the following three academic years i.e. 2014-15, 2015-16 and 2016-17 as submitted before this Hon’ble Court on 3.2.2014 to the State Government to be filled in through the procedure laid down in the order dated 27.5.2009.
14. It is respectfully submitted that in the captioned contempt petition of the Petitioner State only relates to its 50% quota of admissions i.e. 63 seats in the academic year 2011-12.
15. The respondents reiterate the proposal submitted on 3.2.2014 and again tender an unconditional and unqualified apology for their actions.”
12. In the written note filed by the State of Madhya
Pradesh on 13.2.2014, in response to the submissions
made by the contemnors on 3.2.2014, the State of
Madhya Pradesh stated as follows :-
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“20. For the academic session 2011-12, the State Government had a quota of 107 students :-
• 63 seats as per the 50:50 order of this Hon’ble Court.
• 42 seats as per letter dated 19.9.2011 of MCI since Peoples College made excess admissions in 2010-11.
• 2 seats which were not filled in the NRI quota.
21. The aforesaid position of State quota seats for 2011-12 is explained in detail in the letter of MCI dated 5.3.2012 (annexed herewith as Annexure A-1).
22. For the academic session 2011-12
Total sanctioned strength 150
Total seats filled by College 245
College authorized to fill 43
State quota seats filled by College 95
Excess seats filled by College 107
23. The issue of excess admissions made by the College is to be considered as per the Regulations framed by the MCI under the Indian Medical Council Act, 1956 and the submissions made by the MCI in that regard.
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24. However, if the scheme formulated by the Peoples College is considered by this Hon’ble Court, then the excess 107 admissions made by the College in 2011-12 be adjusted in the session of 2014-15 in full and remaining seats be adjusted in 2015-16.
25. On account of illegal and unlawful acts of Respondents/Contemnors, not only the State Government, but the students of the State quota, who were illegally denied admissions were severely harassed and were drawn on a long drawn legal battle with uncertainty of their respective careers.”
13. We have no hesitation in saying that the above
situation has been created by the contemnors themselves
by filling up of the entire 150 seats in total defiance of the
interim orders passed by this Court on 27.5.2009 and
27.1.2011 making an interim arrangement for seat
sharing between the State Government and the private
educational institutions from the year 2009-10 onwards in
the State of Madhya Pradesh, which are binding on the
contemnors. The contemnors attempted to justify their
action on the ground that they are regulated by the
Private Universities Act and that AFRC Act has ceased to
apply and, after the notification dated 4.5.2011, the State
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Government has no right even to share seats in their
institution, de hors the interim orders passed by this
Court. This stand taken by the contemnors is also not
correct, since Section 7(m) of the Private University Act,
2007 provides that admission shall not be started till the
concerned statutes and ordinances are approved as per
Section 35 of the Act, which states that the statutes and
ordinances shall come into force only upon publication in
the official Gazette. Even otherwise, once there is an
order in force binding on the parties, they cannot violate
or ignore that order, taking shelter under a statutory
provision and if any modification of the orders is
warranted, parties should have approached this Court and
sought for clarification or modification of those orders.
However, without doing so, in total defiance of the orders
passed by this Court, they filled up the entire seats,
leaving the students who figured in the State list in the
lurch. Later, though they were admitted in the College
having the infrastructure for accommodating only 150
students, it has affected the quality and standard of
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medical education. After having convinced that they had
violated the orders of this Court, they have come up with
an unconditional and unqualified apology and making
some suggestions to undo the illegality committed by
them after eating away the seats from the State quota.
14. We have, on facts, found that there has been a willful
disobedience by the contemnors of the orders passed by
this Court, which is nothing but interference with the
administration of justice. Disobedience of an order of a
Court, which is willful, shakes the very foundation of the
judicial system and can erode the faith and confidence
reposed by the people in the Judiciary and undermines
rule of law. The Contemnors have shown scant respect to
the orders passed by the highest Court of the land and
depicted undue haste to fill up the entire seats evidently
not to attract better students or recognize merit, but
possibly to make unlawful gain, adopting unhealthy
practices, as noticed by this Court in TMA Pai
Foundation & Ors. v. State of Karnataka & Ors.
(2002) 8 SCC 481 and various other cases. Once the
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Court passes an order, the parties to the proceedings
before the Court cannot avoid implementation of that
order by seeking refuge under any statutory rule and it is
not open to the parties to go behind the orders and
truncate the effect of those orders. This Court in T.R.
Dhananjaya v. J. Vasudevan (1995) 5 SCC 619, held
that once the Court directed that appeal be disposed of
after giving him opportunity of hearing and such direction
was not appealed from, it is not open to the concerned
authority to deny the hearing on the ground that the
Police Manual does not provide for the same. This Court
in Mohd. Aslam alias Bhure, Acchan Rizvi v. Union
of India (1994) 6 SCC 442 held that circumvention of an
order can be by ‘positive acts of violation’ or ‘surreptitious
and indirect aids to circumvention and violation of orders.
In the instant case, the violation is a positive act of
violation, which is apparent on the face of the record.
15. We have already pointed out that the contemnors
earlier took up the stand that, after notifying their
institution as a University on 4.5.2011 under the Private
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University Act, 2007, the AFRC Act ceased to apply,
hence, they are not bound by the orders passed by this
Court. Contemnors cannot take refuse under a
notification issued under a Statute to defeat the interim
orders passed by this Court which are binding on the
parties, unless varied or modified by this Court. In the
instant case, all the appeals in which interim orders have
been passed, are pending before this Court and if the
contemnors had any doubt on the applicability of those
orders, they could have sought clarification or
modification of the order. Now, by tendering
unconditional and unqualified apology, the contemnors
are trying to wriggle out of the possible action for
Contempt of Court, after violating the orders causing
considerable inconvenience to the students and after
enjoying the fruits for the illegality committed by them. It
is trite law that apology is neither a weapon of defence to
purge the guilty of their offence; nor is it intended to
operate as universal panacea, it is intended to be
evidence of real contriteness. (See M.Y. Shareef & Anr.
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v. Hon’ble Judges of the High Court of Nagpur &
Ors. (1955) 1 SCR 757 and M.B. Sanghi, Advocate v.
High Court of Punjab & Haryana & Ors. (1991) 3 SCC
600.
16. Contemnors have now tendered unconditional and
unqualified apology and volunteered to set right the
illegality committed by them, but the purpose for flouting
the orders has been achieved, that is the contemnors
wanted to fill up the entire seats by themselves.
Therefore, to maintain the sanctity of the orders of this
Court and to give a message that the parties cannot get
away by merely tendering an unconditional and
unqualified apology after enjoying the fruits of their
illegality, we are inclined to impose a fine, which we
quantify at Rs.50 lakhs.
17. We may now examine how the illegality committed
by the contemnors can be rectified. For the academic
year 2011-12, the State Government’s quota was 107
seats, details of which is given below :-
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• 63 seats as per the 50:50 order of this Hon’ble Court.
• 42 seats as per letter dated 19.9.2011 of MCI since Peoples College made excess admissions in 2010-11.
• 2 seats which were not filled in the NRI quota.
18. The total sanctioned strength for the academic year
2011-12 was 150 students, but the contemnors had filled
up 245 seats, though the college was authorized to fill up
only 43 seats. The contemnors filled up 95 seats, which
would have gone to the State quota. Consequently, 107
excess seats were filled up by the college. The
contemnors, however, took up the stand that if 63 seats
are to be adjusted for the academic year 2014-15 that
may seriously affect the functioning of the College, hence
their suggestion is that they will compensate the lost
seats in a phased manner, that is 21 seats in the year
2014-15 and the rest in equal proportion in the years
2015-16 and 2016-17, which we find difficult to accept.
We are of the view that the excess of 107 admissions
made in the year 2011-12 have to be adjusted by
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adjusting the same for the academic session 2014-15 in
full and remaining seats be adjusted in the year 2015-16,
because the illegality committed must be set right at the
earliest. This Court in Mridul Dhar (Minor) & Anr. v.
Union of India & Ors. (2005) 2 SCC 65, held (Direction
No.11) as follows :
“11. If any private medical college in a given academic year for any reason grants admission in its management quota in excess of its prescribed quota, the management quota for the next academic year shall stand reduced so as to set off the effect of excess admission in the management quota in the previous academic year.”
19. We may reiterate that the above-mentioned situation
has been created by the contemnors themselves and due
to their illegal and unlawful acts, by admitting students
over and above the sanctioned strength, the students who
were later admitted from the list of State quota, could not
get the quality medical education, which otherwise they
would have got. Further, they were also driven to
unnecessary litigation before the High Court creating
uncertainty to their future.
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20. We, therefore, order that the admission of students
under the State quota for the academic year 2011-12 in
Medical College is valid and legal and appropriate steps
should be taken by the State Government and the Medical
Council of India to regularize the admission. The excess
107 admissions made by the Medical College for the MBBS
during the year 2011-12 and the previous year, be
adjusted in the session 2014-15 in full taking note of the
full sanctioned strength and the balance seats be adjusted
in the year 2015-16. The unconditional and unqualified
apology tendered by the contemnors is accepted, but the
contemnors are directed to pay a fine of Rs.50 lakhs in
two months from today, to the State Government.
Ordered accordingly.
21. The Contempt Petition is disposed of accordingly.
……..……………………J. (Dr. B.S. Chauhan)
……..……………………J. (K.S. Radhakrishnan)
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……..……………………J. (S.A. Bobde)
New Delhi, February 27, 2014.